JAPAN Trends and Developments Contributed by: Hiroaki Matsui, Mari Ueki, Yui Omoteyama and Rei Yamaguchi, AI-EI Law Firm
en in Employment (Act No 113 of 1972) (the “Equal Opportunity Act”)). Maternity harassment is divided into two categories: (i) harassment carried out as an exercise of person - nel authority by employers or others; and (ii) harass - ment by superiors or colleagues unrelated to person - nel matters. Employers are directly prohibited from engaging in the former (Article 11-3, paragraph 2 of the Equal Opportunity Act; Article 25, paragraph 2 of the Act on Childcare Leave, Caregiver Leave, and Other Measures for the Welfare of Workers Caring for Children or Other Family Members (Act No 76 of 1991) (the “Childcare and Family Care Act”)), while the lat - ter is further divided into (i) harassment related to the state of pregnancy, childbirth, or other matters related to pregnancy or childbirth that harm the working envi - ronment (harassment related to the state of pregnancy or childbirth, under the Equal Opportunity Act), and (ii) harassment related to the use of systems such as pre- and post-maternity leave or childcare leave that harm the working environment (harassment related to the use of systems, under the Equal Opportunity Act and the Childcare and Family Care Act). Accordingly, preventative measures are mandated, in accordance with Article 11-3, paragraph 1 of the Equal Opportu - nity Act; and Article 25, paragraph 1 of the Childcare and Family Care Act. Power harassment is defined as “behaviour in the workplace that is based on a superior–subordinate relationship and exceeds the necessary and reason - able scope of work, resulting in harm to the employ - ee’s working environment”. Employers are obligated to take preventative measures (Article 30-2, paragraph 1 of the Act on Comprehensively Advancing Labour Measures, and Stabilising the Employment of Work - ers, and Enriching Workers’ Vocational Lives (Act No 132 of 1966)). Accordingly, the issued MHLW Guide - lines exist to address these types of harassment, indi - cating the direction of preventative measures. While there is no exact match between the criteria for a tort claim and those for sexual harassment, mater - nity harassment and power harassment, many forms of workplace harassment constitute tortious acts; moreover, claims for damages for the consequent mental distress suffered are often filed.
The harassment of LGBTQ employees is prohibited under the regulations on sexual harassment and power harassment. Recently, the Supreme Court ruled that, in the specific circumstances, disadvanta - geous treatment towards a transgender employee in the government lacked reasonable justification and was illegal (Supreme Court judgment of 11 July 2023, Employee v Government (Ministry of Economy, Trade and Industry) , Minshū, Vol 77, No 5, p 1171). Doctrine of Free Will Although the principle of freedom of contract (based on the principle of private autonomy) is recognised as a fundamental concept under Japanese law, there are cases where agreements relating to employment, including their terms and existence, are negated by courts due to the lack of the employee’s free will. In the leading case involving a reduction in retirement benefits through a change in employment rules, where the employee had signed and sealed a document indi - cating their agreement, the Supreme Court held that determination of the existence of consent should be based not only on the employee’s act of accepting the change but also on whether sufficient rationale objectively exists based on the employee’s free will, considering the nature and extent of the disadvantag - es imposed on the employee by the change, the cir - cumstances and manner in which the employee came to perform the act, and the content of information or explanations provided to the employee before the act (Supreme Court judgment of 19 February 2016, Minshū, Vol 70, No 2, p 123, Employee v Yamanashi Prefectural Credit Union ). Subsequently, the concept of the doctrine of free will has been invoked in litigation cases; however, the scope of applicability of the doctrine of free will is not necessarily clear at present. Currently, there are exist - ing analyses and discussions in scholarly articles that have elaborately examined past precedents and cases (see Hisashi Ikeda, “The Coerciveness of Labour and Employment Law and Employee Expression of Inten - tion”, Hōritsu Jihō, No 1186, p 29), implying that the application will not be expanded without limitations.
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